monday, 15th june 2015

Vacation days, as well as the way in which they will be fractioned, are usually agreed between the employer and the workers.

Indeed, in the absence of a default establishment by the Joint Committee or the Work Council, holiday periods must result from a common agreement between the employer and the worker. In case of disagreement, the Labour Court will decide. The worker does not have the right to unilaterally decide to go away from work if the employer does not agree with the chosen moment.

This behaviour could be regarded as an unauthorised absence. Furthermore, this behaviour can also be regarded as an act of insubordination.

If a worker decides to take legal vacation days without the agreement of his employer, it can be considered a serious misconduct.

The worker is carrying out an act of insubordination that can be considered a serious breach, if he decides to take his holidays on a date that he has set unilaterally, and in spite of the reiterated and justified opposition of his employer.

However, the employer cannot validly call upon an act of insubordination if he is not able to bring a proof of his explicit refusal.

The employer must be sure of the reason that led the worker to abandon his work or of his absence before ruling it on serious grounds. This is why a formal notice is very useful in order to provide the worker with the possibility of giving a justification.

In any event, employers should always be cautious before laying off an employer for a serious offence because he had prolonged his holidays without prior agreement. The judge will take into consideration the specific circumstances and will verify when required, whether the employer had clearly expressed or not his refusal to grant the aforementioned prolonged holidays.

Xavier RAEPSAET